Kenya at 50: Unrealized Rights of Minorities and Indigenous Peoples

report

Kenya at 50: unrealized rights of minorities and indigenous peoples By Korir Sing’Oei Abraham Two young Turkana herders near the village of Kache Imeri in Turkana District, northern Kenya. Frederic Courbet / Panos.

Acknowledgements also currently represents other minority groups in ongoing This document has been produced with strategic litigation and was a leading actor in the the financial assistance of the European development and drafting of Kenya’s constitutional Union. The contents of this document provisions on minority groups and marginalization. are the sole responsibility of Minority Rights Group International and can Minority Rights Group International under no circumstances be regarded as reflecting the Minority Rights Group International (MRG) is a position of the European Union. MRG's local implementation nongovernmental organization (NGO) working to secure the partner is the Ogiek Peoples Development Programme rights of ethnic, religious and linguistic minorities and (OPDP). indigenous peoples worldwide, and to promote cooperation and understanding between communities. Our activities are Commissioning Editor: Beth Walker, Production Coordinator: focused on international advocacy, training, publishing and Jasmin Qureshi, Copy editor: Sophie Richmond, outreach. We are guided by the needs expressed by our Typesetter: Kavita Graphics. worldwide partner network of organizations, which represent minority and indigenous peoples. The Author Korir Sing’Oei Abraham is a co-founder of the Centre for MRG works with over 150 organizations in nearly 50 Minority Rights Development. He is a human rights attorney countries. Our governing Council, which meets twice a year, and an advocate of the High Court of Kenya. For more than has members from 10 different countries. MRG has eight years, he has studied and advocated for land rights consultative status with the United Nations Economic and and minority rights in Kenya and East Africa, specifically Social Council (ECOSOC), and observer status with the through regional human rights bodies including the African African Commission on Human and Peoples’ Rights Commission on Human and Peoples’ Rights. He was lead (ACHPR). MRG is registered as a charity and a company counsel for the Endorois community in Kenya, representing limited by guarantee under English law. Registered charity them in their landmark case at the African Commission. He no. 282305, limited company no. 1544957.

Material from this publication may be reproduced for teaching or for other non-commercial purposes. No part of it may be reproduced in any form for commercial purposes without the prior express permission of the copyright holders. For further information please contact MRG. A CIP catalogue record of this publication is available from the British Library. ISBN 978-1-907919-21-3 Published January 2012. Printed in the UK on recycled paper. Kenya at 50: unrealized rights of minorities and indigenous peoples is published by MRG as a contribution to public understanding of the issue which forms its subject. The text and views of the author do not necessarily represent in every detail and all its aspects, the collective view of MRG. Kenya at 50: unrealized rights of minorities and indigenous peoples By Korir Sing’Oei Abraham

Contents

Abbreviations 2

Executive summary 3

Map 4

Introduction 5

Minority identity in Kenya 6

Human rights concerns of minorities 11

Minorities and change: the new Constitution 16

Constitutionalizing minority rights in Africa 25

Conclusion 26

Recommendations 27

Notes 28 Abbreviations

ACHPR African Commission on Human and Peoples’ IHRDA Institute for Human Rights and Development Rights in Africa ACRWC African Committee of Experts on the Rights ILO International Labour Organization and Welfare of the Child JSC Judicial Service Commission CBS Central Bureau of Statistics KANU Kenya Africa National Union CEMIRIDE Centre for Minority Rights and Development NCIA National Cohesion and Integration Act CIC Constitutional Implementation Commission NCIC National Cohesion and Integration CIPEV Commission of Inquiry into Post-Electoral Commission Violence NGO non-governmental organization EOC Equal Opportunities Commission NLC National Land Commission FGD focus group discussions OSI Open Society Justice Initiative ICC International Criminal Court TJRC Truth, Justice and Reconciliation Commission IDPs internally displaced persons UN United Nations

2 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Executive summary

To mark Kenya’s 50th anniversary of self-rule, this report vulnerable groups generally, this report shows that the reviews the current status of minority and indigenous prevailing experience of minorities in Kenya is increased groups in Kenya. Focusing on Kenya’s 2010 Constitution, vulnerability. This means that although policy recognition this report pays particular attention to how legal and of minorities is an important gain, legislative and policy changes over the last five years have responded to administrative implementation remains a challenge. There the social, economic and political challenges confronting is a danger that constitutional recognition may not minorities. translate into positive developments for minority groups Kenya’s new Constitution is a progressive document that in reality. The report describes the ongoing challenges aims to address the failed legal and moral systems created by facing minority and indigenous groups: lack of political earlier colonial and postcolonial regimes. The country’s participation, discrimination and weak protection of their previous constitutional order alienated most citizens from right to development. the state, but minority and indigenous communities have Responding to the deep-seated disempowerment of borne the brunt of this exclusion. Further, this system minorities on the one hand and the opportunities reproduced and strengthened differences between Kenya’s presented by the new constitutional framework on the diverse groups – mainly ethnic and religious – rather than other, the report recommends that principles of building a pluralistic society that tolerates all shades of multiculturalism should be established in every sector of diversity based on equality before the law. society, including in education. It urges the Kenyan The present state of minority and indigenous groups government to facilitate the political participation of within Kenya’s dynamic context has been shaped by minorities and put a stop to targeted police harassment of conflicting forces of regression and progress responding to minority groups in the country. the 2007 post-electoral violence, the new Constitution Directed at non-governmental organizations (NGOs), and the forthcoming 2012 elections. This report policy actors and the media, the report warns that failure demonstrates both the opportunities to be seized and to ensure inclusion of minorities and address the anxieties constraints to be overcome by minority groups if they are of majorities, particularly in the context of county to realize the dream of inclusion. governments in the run-up to the 2012 elections and Although Kenya’s new Constitution contains beyond, will lead to untold conflict, driving the reform numerous positive provisions for minorities and other agenda several years back.

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 3 Kenya

SUDAN

Administrative boundary

ETHIOPIA

Lokichoggio

Ramu Mandera

Lake Rudolf (Lake Turkana) Moyale

Lodwar

Turkwel

Marsabit Y UGANDA E L

V EASTERN Wajir

T F Lak Bor I

R RIFT VALLEY T SOMALIA o NORTH EASTERN KENYA ’ir A Maralal g Kitale N E Ewaso R

WESTERN G Mado Gashi oia Eldoret Lak Dera Nz Lake Bogoria Isiolo Kakamega Butere Nyahururu Falls Meru Nanyuki Kisumu Mount Kenya Nakuru Kericho Nyeri Garissa Embu Lake NYANZA Victoria CENTRAL Tana

Narok Thika

Nairobi NAIROBI AREA EASTERN

Athi Magadi COAST

Garsen Lamu

Namanga

Tsavo Galana

Malindi Tavela Voi

Kilifi

Mombasa

INDIAN OCEAN TANZANIA

0 100 200 km

4 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Introduction

Kenya will celebrate its golden anniversary of self-rule in This provides activists with crucial ideas on how to secure 2012. Over this 50-year period, the country’s population minority and indigenous rights in the context of the has grown five-fold; from a mere 8 million people in constitutional implementation process in Kenya. 1964, to 40 million in 2009. Out of the 43 ethnic groups This report argues that it is essential to raise minority listed in Kenya’s 2009 National Housing and Population groups’ awareness of the provisions of the Constitution Census Report,1 five communities – Kikuyu, Luhya, and the implications of these provisions for their lives. Kalenjin, Luo and Kamba – account for over 50 per cent Among other key recommendations, this report urges the of the population; 18 other ethnic groups listed in the Kenyan state, development partners and civil society to report have populations of less than 100,000 people. This roll out a comprehensive civil education programme to report reviews the present status of minority communities benefit marginalized communities. This civic education in Kenya, paying particular attention to the manner in should also target public servants, particularly the police, which legal and policy changes over the last five years have who are instructed by the Constitution to address the taken account of the social, economic and political needs of vulnerable groups. The report also urges challenges confronting minorities. Focusing on the new parliament to legislate to give effect to the constitutional Constitution, this report analyses the various provisions provision on affirmative action for marginalized groups that relate most directly to the particular concerns of and clarify the land provisions of the new Constitution. minority groups in Kenya and beyond, while exploring the The Kenyan government should also develop a strategy to opportunities and challenges that activists, donors and the include minority members at all levels of governance and Kenyan state must navigate to ensure that the promise of map minorities at the county level. It should also ensure social justice for the most disadvantaged communities in that constitutional and legislative safeguards for the Kenya is realized. protection and promotion of minority rights within This report is in four sections. The first discusses the counties are adopted and implemented before the 2012 emerging constitutional, policy and practical elections. understanding of the beneficiaries of minority rights protection in Kenya. This section also analyses the Methodology historical and current drivers for the continued exclusion This report was written during a three-month period, from of minorities in the country. The second section describes August to October 2011, and is based largely on the the situation of three minority groups to show the author’s personal interaction with the evolving context of common challenges confronting many minorities in the minority rights protection both in Kenya and country: lack of political participation, discrimination and internationally over the last ten years. This report also weak protection of their right to development. The third draws on secondary literature, as well as key informant section focuses on the struggle by a number of minority interviews and meetings attended by the author. A short groups for inclusion, particularly through the questionnaire was also developed and sent to select constitutional review process. This section examines the respondents, whose qualitative response informed the provisions of the new Constitution and their implications author’s understanding of community perceptions of for minorities in the country, and assesses developments constitutional, legal or political changes over the last couple since the new Constitution was adopted. The fourth of years. Focus group discussions with Ogiek in Nakuru, section of the report analyses some efforts by other African Nubians in Nairobi, Turkana in Kitale and Samburu in countries to enhance the inclusion of marginalized groups. Nanyuki, Kenya were held in the month of October.

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 5 Minority identity in Kenya

Table 2: Communities with a population Minority groups in Kenya below 1 million

In order to understand how Kenya’s complex multi-ethnic Community Population size mosaic was created, it is necessary to appreciate that most of Africa’s states, Kenya included, were constructed by the Turkana 988,592 2 forces of colonialism. Despite the fact that in the colonial Maasai 841,622 scheme, few of the colonizers ‘spheres of influence’ were Teso 338,833 designed to be states3, the Organization of African Unity resolved to retain colonial borders after independence.4 As Embu 324,092 a consequence, most African states, Kenya included, are Taita 273,519 made up of many ethnic communities that are not well Kuria 260,401 integrated to their countries’ national life. Samburu 237,179 While the Central Bureau of Statistics (CBS) in Kenya Tharaka provided data disaggregated by communities in its 2009 175,905 Census report, it failed to provide statistics on minority Mbeere 168,155 ethnicities, particularly hunter-gatherers.5 Instead, the Borana 161,399 CBS chose to subsume groups such as Sengwer, Ogiek and Basuba 139,271 Endorois in a larger identity group, the Kalenjin. Even Swahili 110,614 when the CBS statistics provided numbers of a minority group, members of that group have discounted the Communities with a population below 100,000 accuracy of the count.6 The limitations of official ethnic statistics Gabbra 89,515 notwithstanding, based on the latest data from CBS, Orma 66,275 Kenya is composed of more than 43 ethnic groups whose Rendile 60,437 populations range from 6 million to a few thousands. This Kenyan Asians 46,782 level of ethnic diversity, where no group makes up more than one half of the total population, means that the Kenyan Arabs 40,760 Ilchamus 27,288 Table 1: Communities with a population Sakuye 26,784 exceeding 1 million Burji 23,735 Gosha 21,864 Community Population size Taveta 20,828 Kikuyu 6,622,576 Walwana 16,803 Luhya 5,338,666 Nubi 15,463 Kalenjin 4,967,328 Dasenach 12,530 Luo 4,044,440 Waata 6,900 Kamba 3,893,157 Leysan 5,900 Kenya Somali 2,385,572 Njemps 5,228 Kisii 2,205,669 Kenyan Europeans 5,166 Mijikenda 1,960,574 Isaak 3,160 Meru 1,658,108 Kenyan Americans 2,422 SOURCE: CENTRAL BUREAU OF STATISTICS (CBS), KENYA 2009 POPULATION AND HOUSING Konso CENSUS, HTTP://WWW.PLANNING.GO.KE/INDEX.PHP?OPTION=COM_DOCMAN&TASK=CAT 1,758 _VIEW&GID=64&ITEMID=69&LIMITSTART=15’

6 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES status of ‘a minority’ in the country becomes contingent ‘The situation is very complicated – because Kenya is upon communities’ differential access to the state during a very unequal society … the “dominant” groups and after colonial rule. In a previous report, Minority include many who are poor and neglected … Rights Group International (MRG) noted that in Kenya [W]ithin many areas – including in the new counties there is a direct correlation between political power and – there will be people who are minorities, even if they the economic well-being of a community and, by are members of groups that are dominant elsewhere in extension, individuals within that community: the country.’ 13

‘Political power in Kenya has been used to acquire While the grievances and anger against some of the economic power, thereby placing an additional premium dominant groups are perceived and identified in the on the necessity of acquiring political power. This has context of national-level political and economic debate, been taken to absurd levels, where particular leaders any prejudice, exclusion and violence is exercised at a have used their political positions to illegally acquire much more local level. wealth and, upon being called to account, have said Responding at least partially to this reality, the 2010 that their ethnic groups are being persecuted politically. Constitution seeks to address both the historical situations that However, even when a particular community is in created minorities as well as emerging social developments that power, the ‘eating’ is only done by that community’s elite. have the potential to create new minorities. The Constitution It does not always translate into a tangible beneﬁt for accords protection to ‘minorities’, ‘marginalized communities’ the ordinary people in that community.’ 7 and ‘marginalized groups’, and often uses these terms interchangeably. Article 260 of the Constitution, when Released in 2005, this report captured the situation of describing marginalized communities and marginalized groups, hunter-gatherer and pastoralist communities who have does not define the term ‘minority’, perhaps because of the lack traditionally self-identified either as minorities or of an internationally accepted definition of the latter term.14 In indigenous peoples or both.8 However, discussion on the seeking to identify these disadvantaged groups, the meaning of ‘minorities’ and content of minority rights, has Constitution relies on objective rather than subjective criteria, evolved rapidly, particularly since 2007. in a manner quite consistent with international standards.15 Over the last decade, the work of minority rights The Constitution defines a marginalized community as: activists in Kenya has focused on mobilizing the voices of a community which, by reason of its size or otherwise, has ethnic and cultural groups9 ‘who think of themselves as been unable to participate in public life in Kenya; an possessing a distinct cultural identity … and who evidence indigenous community that has retained and maintained a a desire to transmit this to succeeding generations [and] traditional livelihood based on a hunter or gatherer … are defined by their real not imagined differences to the economy; nomadic or sedentary pastoralists; and groups majority’.10 This more classical definition of minorities, which are geographically isolated. While some groups, however, was inexorably altered by the unprecedented such as Nubians, meet only one criterion of a marginalized post-election violence between December 2007 and community, others, such as the Ogiek, could fit into more February 2008, which was sparked by a contested than one. presidential election result but quickly took on an ethnic A marginalized group, in contrast, is defined so as to dimension; and further by the new Constitution adopted capture a very broad class of socially excluded persons: in August 2010.11 ‘Who, because of laws or practices before, on, or after the The post-election violence revealed that the situation effective date, were or are disadvantaged by discrimination of minorities in Kenya should be assessed not merely from on one or more of the grounds in Article 27 (4)’, a national context but, more importantly, from the sub- including race, sex, pregnancy, marital status, health national, provincial, district and constituency levels. The status, ethnic or social origin, colour, age, disability, lesson of this conflict, and of previous ethnic conflict over religion, conscience, belief, language or birth. elections in the 1990s, is that while Kikuyu, Luo or Luhya By providing for present and future protection of may constitute relatively dominant groups at the national groups suffering unfair disadvantages in law or in practice, level, they can be in a non-dominant position at sub- the Constitution demonstrates an important national levels.12 Similarly, while the Maasai, Somali, understanding of the dynamic nature of the forces of Giriama or Endorois may be minorities from a national- exclusion in the country. However, the expanded level perspective, they exert dominance in their definition of marginalized groups implies that many may constituencies in the North Eastern, Coast or Rift Valley seek protection as marginalized groups making the provinces respectively. A more nuanced understanding of definition either redundant or ineffectual for protecting minorities is required in the post-2007 Kenyan context: ‘real’ minorities in the Kenyan context.

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 7 promised to grant them unfettered nationality as well as Historical development of land rights over areas they occupied in Kibera, a slum minority rights in Kenya district of Nairobi.22 Similarly, Kibaki established a task force to study and report to him on Muslim historical The Constitution which Kenya inherited from the British grievances in Kenya,23 and yet consistently sanctioned the in 1964 – under the country’s first president, Mzee Jomo rendition of Muslims for trial within more repressive states Kenyatta – was based on compromises between the in neighbouring countries without due process.24 In both colonial interests of the settler minority and an attempt to cases, Kibaki has demonstrated less than unequivocal balance the disparate ethnic aspirations and fears of commitment to following through on his promises. Kenya’s indigenous communities. The Constitution aimed Kibaki’s government has pursued macro-level economic to safeguard white minority interests, particularly property growth at the expense of minorities.25 Rather than ethnic and citizenship rights,16 and adopted two mechanisms to conflicts over natural resources and political competition secure the accommodation and autonomy of African being the main cause of displacement and minority communities in Kenya. It established regional impoverishment, national development is now the governments, which were vested with authority to manage primary threat to the survival of some minorities.26 To his the affairs of the communities living in those regions, credit though, Kibaki presided over the adoption of the while ensuring that regional concerns were well articulated new Constitution, the broad provisions of which contain within the supra-state level.17 The Constitution also important safeguards for the protection of minority rights established what was at that time, in the early 1960s, a in the new Kenya, as we shall discuss in more detail later robust bill of rights fashioned after the European in this report. Convention on Human Rights. These constitutional arrangements collapsed soon after Recent developments independence. Regional assemblies were dismantled, the two-chambered legislature (Senate and parliament) abolished The exercise of presidential power alone, however, is not and the power of these bodies combined under an imperial responsible for the current status of minority rights presidency. Under this constitutional aberration, the protection. Kenya is a member of the United Nations presidency was used as an instrument of crude accumulation (UN), the African Union and other sub-regional of state largesse, but also – and most crucially for minorities arrangements and therefore the international community – land.18 is involved in the country’s internal affairs to some extent. It was hoped that the rise to power of Daniel Moi – who Until the height of the post-election violencein 2007–8, succeeded President Kenyatta in 1978 and was himself from the influence of these external actors in Kenya’s internal a minority group background – would pave the way for affairs was less than clear. Following the escalation of more inclusive and responsive policies.19 But this was not to violence, at the request of the international community be. After the failed coup in 1982, Moi commenced a and under Kofi Annan’s mediation, Kenya’s warring ‘pogrom’ that fixed ethnicity, and impunity, as the political parties signed a power-sharing arrangement and a cornerstone for governance. National Accord. The accord’s four-point agenda provided The multi-party period in early 1990s heralded the a road map for necessary short- and longer-term changes return of political pluralism but most minority groups were to prevent future violence. These proposed changes aimed mobilized under the Kenya Africa National Union (KANU) not only to deal with immediate humanitarian issues, but party.20 During this period, a number of groups were also to address impunity27 and promote broader displaced from ancestrally occupied land, in the name of institutional change, including land reform and the either development or of the resettlement of landless adoption of a new Constitution.28 people.21 The National Accord and the enactment of Annan’s Although President Mwai Kibaki was first elected on a four-point agenda is already having tremendous impact on platform of reform in 2002, his political and economic inter-ethnic relations in a number of ways. First, agenda has continued on the same trajectory as the minorities stand to benefit a great deal – subject to previous Kenyan governments with respect to the effective and inclusive implementation – from the treatment of minority rights and grievances. What has provisions of the new Constitution. Second, two changed by and large is the strategy: the Kibaki state institutional responses emerged to address ethnic conflict appears to seek some form of engagement with minorities, and discrimination that present immense potential to but with little if any intention of pursuing a major change minorities. The first of these is the Truth, Justice and in policy. For instance, prior to the 2007 elections, Kibaki Reconciliation Commission (TJRC), which has been hosted delegations from the Nubian community and designed as a ‘forum for non-retributive truth telling that

8 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES charts a new moral vision and seeks to create a value-based Lake Harrington and later Lake Bogoria Game society for all Kenyans’.29 Additionally, the TJRC is Reserve, controlled by the Baringo and Koibatek local expected to assess ‘perceived economic marginalization of authorities and managed by the Kenya Wildlife communities and make recommendations on how to Services. The government proceeded to forcibly evict address their marginalization’. The second institutional over 400 families from Lake Bogoria without any response is the National Cohesion and Integration Act consultation or compensation. (NCIA) of 2008. This milestone legislation, apart from criminalizing hate speech, seeks to address the problem of F2. The failure to compensate the community with ethnic discrimination within the public sector.30 More adequate grazing land to sustain their livestock, or to importantly, the NCIA established the National Cohesion subsequently involve the Endorois in the management and Integration Commission to implement the Act and benefit-sharing of the reserve, forced the (NCIC). Endorois into abject poverty from which they have Already, various grievances by minority groups have never recovered. featured prominently in the public hearings and regional visits of the TJRC. Relatives of the victims of the Wagalla F3. In 1997 the Endorois, as beneficial owners of Trust massacre in the late 1980s provided extensive testimony Land, sought constitutional interpretation regarding on the state-sponsored killings of members of the Somali their rights within the Lake Bogoria reserve. They Degodia clan by security officials. A special session to hear specifically urged the Court to abolish the Trust on testimonies of women widowed as a result of the Wagalla the grounds that the Baringo and Koibatek councils massacre 27 years ago was held in camera due to had violated their duty towards the community by allegations of sexual violence. Most of the TJRC’s 30,000 failing to apply resources accrued from the reserve statements, collected from victims across the country, deal towards improving the social and economic welfare of with land grievances, one of the most common challenges the community. The Constitutional Court failed to facing indigenous groups in the country.31 In order to assess the duty of a local authority towards the ensure that concerns of minorities are fully incorporated in community (as envisaged in Articles 114–19 of the its final report, the TJRC has commissioned the Centre former Constitution) but instead found that the for Minority Rights and Development (CEMIRIDE) to establishment of the reserve had nationalized the draft an issue paper and propose recommendations to resource, placing it outside the direct control or address perceived marginalization of communities.32 enjoyment of the community. Equally, the NCIC has emphasized the need for inclusion in public sector appointments. Its ethnic audit, released in F4. The appeal filed by the community was not heard for April 2011, revealed that members of the Kikuyu, over three years, and in 2003 the Endorois, through Kalenjin, Luhya, Kamba and Luo communities occupy 70 CEMIRIDE and MRG, approached the African per cent of all jobs in the civil service.33 The NCIC is Commission seeking remedies of restitution of its land currently involved in formulating a policy on national and compensation for material and spiritual losses cohesion which will have significant impact on how among others on the basis of the African Charter on dominant and non-dominant groups relate, focusing on Human and Peoples’ Rights. the need for tolerance education.34 The celebrated decision in the Endorois case best F5. On 2 February 2010, the African Commission found exemplifies the impact of Kenya’s participation in regional in favour of the Endorois community. and international human rights institutions. Ruling

Centre for Minority Rights Development R1. On indigenous identity: In response to the (Kenya) and Minority Rights Group government of Kenya’s objection that the inclusion of International on behalf of Endorois Welfare the Endorois in ‘modern society’ had affected their Council v. Kenya 35 cultural distinctiveness for the purposes of special protection as an indigenous group, the Commission Facts of the case established that actual aboriginality or distinctiveness were not a requirement for indigenous status in F1. In 1973 the Government of Kenya in exercise of its Africa. Proof regarding unambiguous dependence on statutory authority over land, reserved Endorois land a specific territory and the experience of (then Trust Land) as a wildlife sanctuary first called marginalization and discrimination was sufficient.

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 9 Saramaka v. Suriname Citing (Inter-American Court of Legal recommendations Human Rights), the Commission concluded that the mere fact that some members of Endorois no longer R1. Recognize rights of ownership to the Endorois and identified with the cultural traditions of the community restitute Endorois ancestral land. did not deprive their community of juridical R2. Ensure that the Endorois community has unrestricted personality. access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle. R2. On the right to property: The Commission found that R3. Pay adequate compensation to the community for all neither paper title nor uninterrupted occupation were the loss suffered. necessary to prove ownership for indigenous R4. Pay royalties to the Endorois from existing economic communities. It determined that ‘possession’ of the activities and ensure that they benefit from land should suffice for indigenous communities employment possibilities within the Reserve. lacking real title to obtain official recognition of that R5. Grant registration to the Endorois Welfare property. The Commission further added that, while Committee. traditional possession entitled indigenous people to R6. Engage in dialogue with the Complainants for the demand official recognition and registration of effective implementation of these recommendations. property title, members of indigenous communities who had unwillingly left their traditional lands, or lost Status of the decision: Not implemented. possession thereof, maintained property rights thereto, even though they lack legal title, unless the lands had been lawfully transferred to third parties in While the Kenyan state often does not comply with good faith. Moreover, the Commission stressed that the recommendations and decisions of human rights members of indigenous communities who had treaty bodies, the Universal Periodic Review process unwillingly lost possession of their lands, when those within the framework of the UN Human Rights Council lands had been lawfully transferred to innocent third yielded a commitment on the part of Kenya to parties, remained entitled to restitution thereof or to ‘implement the recommendations and decisions from its obtain other lands of equal extension and quality. own judicial institutions as well as the African Consequently, possession is not a requisite condition Commission on Human and Peoples’ Rights (ACHPR), for the existence of indigenous land restitution rights. particularly those relating to the rights of indigenous The government was urged to consult Endorois in peoples.’ This open-ended commitment provides an clarifying the nature and content of tenure rights over opportunity to kick start negotiations with the state on Lake Bogoria. The Commission concluded that Trust ways to execute the recommendations of the ACHPR in Land regime had ‘proved inadequate to protect the the Endorois communication as well as the Ilchamus rights of communities …’ decision, which is discussed in the following section of this report.

10 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Human rights concerns of minorities

MRG’s 2005 report on Kenya exposed the country’s Constitution, while acknowledging that it might take a existing complex ethnic and regional inequalities, and the while before some groups (minority women included) resulting impact on the social and economic rights of began to reap the benefits: ‘much as the gains will not be minorities. Failure to address these equity concerns immediate, it is most certainly comforting to know that threatened the stability of the state:37 for those who might wish to benefit in certain ways, they have the constitutional backing to do so’.40 ‘The common denominator among Kenya’s excluded Many minorities, interviewed separately and in groups, communities is poor access to resources and reported that formal courts across the country have been opportunities, insecurity of tenure and alienation used either to silence or deliberately harass them. Equally, from the state administration. Their weak voice in some minority members accused the police of enforcing governance restricts their ability to address most of the rights of wealthy and influential individuals over those these issues and increases their vulnerability in the of communities, particularly in property disputes cases. In face of environmental, economic and political Samburu for instance, charges of trespass against pastoral problems … [they] suffer from low levels of income; groups have increased whenever the community seeks and poor health and nutrition, literacy and access to grazing grounds, even in what they consider to educational performance, and physical infrastructure.’ be community lands.41 A similar trend has been witnessed in Kedong ranch in Naivasha, in the Rift Valley, where Despite some progress made in addressing these over 50 cases of trespass have been filed against Maasai challenges, especially at the policy level, many minorities feel herdsmen.42 Trespass charges have also been initiated in the that their situation is worse today than it was in 2005. Kenyan Coast province against communities who occupy Central to this perception is the increased ethnicization of government land, which is the predominant land tenure in Kenyan politics, which has deepened the sense of exclusion the region.43 The police often mete out communal among minority groups. During interviews conducted for punishment against minority groups, including the use of this report, Sahra Ali, a woman from the Isahakia rape in the case of Samburu women in Pois Robo, and the community in Narok contended that ‘minorities are being confiscation of livestock.44 marginalized further … Big tribes are merging to build In general, some of the shared problems faced by political coalitions for political reasons.’ She further pointed minorities and marginalized communities that emerged out that issues affecting minority groups, such as drought, from focus group discussions (FGDs)45 include: are not receiving media attention in contrast to, for instance, the International Criminal Court’s (ICC) activities in Kenya, • The lack of effective representation in parliament and which dominate media space.38 Sheikh Ramadhan, from the participation in local decision-making; Nubian community, held the view that • The dispossession of their ancestral land and resource rights in addition to distortion of their livelihoods to ‘the situation of the Nubians is worse today than make way for the establishment of national parks, before … from Kibigori to Kibera, land grabbing of game reserves, forest areas and economic activities; what would be Nubian community land is on the rise • Poverty, inequality, and limited access to social services … What is the use of the new Constitution providing as a result of historical marginalization. for community land when all lands occupied by Nubians have been grabbed?’ 39 Some of these issues are further discussed in the next section of the report. In contrast, Patita Tingoi, a young Maasai woman leader saw the long-term potential of the new

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 11 The relationship between access to public services and Public decision-making deﬁcit: proximity to government exerts pressure on minority the Ilchamus example groups to discard or hide their identity and take on the more dominant identity. A Nubian woman asserted that: While minorities in Kenya are increasingly recognized by ‘I’d pretend to be a Kikuyu when seeking services from the state from an identity perspective, this recognition has government offices … Once, I spoke loudly in Kikuyu yet to translate into real respect. This treatment is clear language to attract the attention of a government official from the limited level of participation of minorities in in Kibera, but was let down by my buibui [black gown actual decision-making in relation to matters that affect worn by Muslim women].’52 them. Traditional governance structures have been Participation is so important for minority groups that systematically undermined over the years,46 leaving some communities have moved beyond appealing to the minorities to contend with dominant groups within state to include them in decision-making processes and formal decision-making bodies where they have limited or have instead sought the assistance of courts. The best no representation. Without the opportunity to ‘influence demonstration of this trend is the struggle by the Ilchamus the formulation and implementation of public policy, and community. to be represented by people belonging to the same social, cultural and economic context as themselves’47 minorities have become increasingly alienated and socially vulnerable Ilchamus community v. Electoral Commission within the state. of Kenya and Attorney General of Kenya 53 Most minorities and marginalized communities in Kenya – by virtue of their numbers – are unable to Facts of the case succeed in having a member of their own community win an elective office in Kenya’s majoritarian system of F1. In 2004, an application was brought before the High democracy. This difficulty is further compounded by Court of Kenya by the Ilchamus people against the deliberate attempts by the state to divide minorities government of Kenya alleging violations of their rights between different administrative or electoral units, to political representation, to choose a candidate of rendering them numerically inferior in whichever unit their choice, freedom of conscience and freedom of where they are present. Such has been the fate of Ogiek, expression. who are spread over five constituencies, drastically reducing their chances of winning in an electoral contest F2. The Ilchamus (also known as the Njemps) – a small in any of these areas.48 The Endorois are similarly divided group with a distinct history and language, numbering into two local authorities – Baringo and Koibatek – where, 25,000–30,000 persons and living around the shores despite having a number of councillors from the of Lake Baringo – were considered to be part of the community, they are unable to influence political Baringo Central Constituency, one of the 200 political decisions in either county council because they are too units in the country. They argued that they were few.49 Sengwer are equally disadvantaged by skewed indigenous people and that a member of their administrative borders; the group bestraddle the community had never and could never represent Marakwet, Pokot and Trans-Nzoia counties, rendering them (for the next 40 years) in parliament because the them totally unrepresented in each. current demarcation of constituency boundaries, Minorities’ lack of participation translates into weak especially in Baringo Central Constituency, made voice in public decision-making, thereby contributing to them a perpetual minority. Consequently, the an increased sense of exclusion. In most cases, political Ilchamus contended that this demarcation violated representation in Kenya is also linked to access to their fundamental rights to political representation, to resources given that political units, notably constituencies, choose a candidate of their choice, freedom of have become direct recipients of annual grants from conscience and freedom of expression. central government to cater for local development.50 Many members of the Sengwer community link their 2009 F3. They further contended that the Baringo Central evictions from Kabolet forest and the eventual burning Constituency should be divided into two separate down of their homes and farmlands to the lack of political constituencies, taking into account the appropriate participation. Moses Laima, a Sengwer elder put it demographic and numerical considerations and all poignantly: ‘We have no defender in parliament, nor powers set out in section 42 of the Constitution of within district administrations. Our eviction matters not Kenya, so as to prevent the continuing electoral, political, to any political actor. We are like a house without walls.’51 social and economic marginalization of the Ilchamus.

12 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES F4. The Ilchamus contended that they fall within the the lifeblood of democracy and clear constitutional purview of section 33 of the Constitution, in that they recognition of a minority is essential so they can constitute special interests and consequently one of participate in the state’s political process and their members should be nominated as a way of influence state policies. implementing the constitutional machinery for the representation and protection of indigenous R6. The Ilchamus’ right to exist, be treated without minorities. They advocated for the need to have their discrimination, the preservation of their cultural voice in parliament so as to protect their interests, to identity, freedom of conscience, freedom of safeguard their own cultural values, traditions, social association and their participation in public life had patterns and territorial identity. been violated.

F5. The government of Kenya argued that the application R7. The Electoral Commission of Kenya was directed to was frivolous, vexatious, an abuse of court process take into account all the requirements set out in and lacked merit in law and fact, in that the Ilchamus section 42 of the Constitution of Kenya at its next were not an indigenous people but a Maasai clan. boundary review and, in particular, to ensure The government further argued that the Ilchamus did adequate representation of sparsely populated rural not constitute a special interest group envisaged in areas, and to take account of population trend, and section 33 of the Constitution and therefore were not community of interest, including that of minorities, entitled to representation. They further argued that especially the Ilchamus of Baringo Central the current delimitation of the Baringo Central Constituency. Constituency took into account their special interests. Status of the decision: Not implemented. Ruling

R1. The Ilchamus people are a unique, cohesive, homogeneous and culturally distinct minority having While the new Constitution could address the problem of all the attributes of the internationally recognized political participation, the lack of political will to indigenous peoples. The Ilchamus community implement provisions relating to minorities is causing constituted a special interest group as contemplated considerable frustration among minorities. At one focus by the mandatory purposes of section 33 of the group, it was observed that: Kenya Constitution. ‘The 10th parliament has … not put in place any R2. The term ‘minorities’ under modern and forward- legislative measures to redress the blatant exclusion of looking jurisprudence should include non-citizens. minorities in political institutions and the government has neither taken any affirmative R3. The Ilchamus people have the right to influence the programmes to facilitate enjoyment of our gains in the formulation and implementation of public policy, and new Constitution.’ 54 to be represented by people belonging to the same social cultural and economic context as themselves. The government’s failure to implement positive legal provisions or favourable judicial decisions such as the R4. The Electoral Commission of Kenya had a duty to Endorois and Ilchamus cases, has pushed minorities further protect minority interests – the principle of one man to the margins of society. Without experiencing the fruits one vote notwithstanding. The Electoral Commission of their legitimate struggles, it is not unreasonable that of Kenya was not supposed to submerge minority minorities to increasingly resort to ‘self-help’ including groups when drawing boundaries. Again violence due to frustration with the government. gerrymandering in the drawing of constituency lines so as to dilute the voting power of a minority or other Social exclusion: group is not permissible. the Nubian example R5. For a political system to be truly democratic, it has to allow minorities a voice of their own, to articulate their The exclusion faced by ethnic, linguistic and religious distinct concerns and seek redress and thereby lay a minorities in Kenya is both overt and covert. While law sure base for deliberative democracy. Participation is and policy are beginning to respond to the challenges

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 13 facing minorities, social discrimination and discrimination status in Kenya. Although Kenya’s independence in state practice remain endemic. Nothing exemplifies this Constitution recognized land rights irrespective of discrimination more clearly than the situation of the nationality, the practice was that land settled by known Nubian community. African communities of indigenous extraction would devolve Seven years before Kenya experienced its worst to that community. African communities which occupied politically instigated violence in December 2007, the government land such as forests or ‘unalienated land’ (land winds of mass violence had already rocked the Kibera which had not been leased or allocated), such as the slums near downtown Nairobi. In this expansive human Nubians, Ogiek, Sengwer and communities in the Kenyan settlement known internationally for its poor sanitation Coast, faced the unique problem that their occupation of and crammed living quarters, Nubians, now sixth- these lands was unlawful. Since independence, the Kenyan generation descendants of former soldiers in the government has either hived off forests or used portions of British-led Kenya African Rifles – eke out an existence. government land to settle landless Kenyans. To use But in December 2001, ten Nubian landlords were government land to recompense a non-native community summarily executed by their Luo and Luhya tenants when such as the Nubians is seen as politically unpopular and no the former demanded payment of outstanding rent. These Kenyan government has been willing to find a resolution to killings set off a three-day conflict which pitted Nubians the long-standing Nubian land question. Therefore the against Luos and Luhyas, and left hundreds of people Nubian community resorted to litigation. critically injured and many properties, particularly those In 2003, the Nubians went to the High Courts in belonging to Nubians, burnt to the ground. Thousands of Nairobi to seek entitlement to Kenyan citizenship. people were displaced, and for months sought refuge in Although this litigation effort did not yield a positive mosques until they were absorbed into Kibera’s massive outcome, largely because of the highly inefficient and informal settlement.55 corrupt judicial system, it exposed the Kenyan In the immediate aftermath of the 2001 conflicts, it government’s discriminatory policy towards the Nubians. emerged that the denial of rights to property – whose Through papers filed in Court, it became clear that the secondary right includes the ability to levy rent from a Kenyan state viewed the Nubians as foreigners from Sudan tenant – and displacements were not new phenomena but who must renounce their putative citizenship before being a periodic reality experienced by Nubians. At least eight granted Kenyan citizenship. Moreover, the Kenyan state previous demolitions of Nubian homes by the state believed that Nubians should only be entitled to spanning a 40-year period, starting in 1947 during the citizenship by registration, an inferior type of citizenship construction of a railway line all the way up to 1984, had that could be withdrawn on the whim and caprice of the taken place. In each of these waves of demolitions and Minister in Charge of Nationality Issues. forced evictions, the Nubians were never consulted prior Frustrated by their failure in the Kenyan courts, to their evictions and were forcibly displaced without Nubians shifted the focus of their struggle from the compensation or alternative settlements, and never domestic level in Kenya to the regional level. Thus in benefited from the estates build on their land.56 2006, with the support of CEMIRIDE, Open Society While in Kenya unresolved land claims are a ready Justice Initiative (OSI) and the Institute for Human trigger of conflict, Nubians’ claims over Kibera are very Rights and Development in Africa (IHRDA), Nubians specific. In the first instance, the Nubians – originally sued the Kenyan state at the ACHPR for violation of from the Nuba mountains in central Sudan – have various rights protected by the African Charter on Human occupied Kibera for well over a hundred years – longer and Peoples’ Rights, the African Union’s principal human than most Kenyan communities have inhabited their rights treaty. These rights included the right to property, present secure holdings. Indeed, the colonial government freedom of movement, freedom from discrimination, and had acknowledged by 1934, that one of the reasons why various social and economic rights. 4,197 hectares of urban land in the precincts of Nairobi Simultaneously with the action at the African was designated as ‘Crown lands’, the precursor of the Commission, the Nubians also presented the African current ‘government lands’, was to ‘provide a home for Committee of Experts on the Rights and Welfare of the Sudanese ex-Askaries (Nubian former soldiers)’.57 It was Child (ACRWC) (the body that monitors African Charter clear, even to the colonial regime at a period prior to on the Rights and Welfare of the Child, which Kenya international human rights law becoming ubiquitous, that ratified on 25 July 2000) with a complaint on behalf of equity demanded that Nubians in Kibera either be granted Nubian children. While the African Commission, which full property rights or relocated to land of equal value. declared the Nubian complaint admissible in 2009, has yet Underlying the insecurity of Nubian land tenure in to make a decision in relation to the Nubian case, the Kibera has been the question of their unclear citizenship ACRWC found Kenya in violation of the rights of Nubian

14 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES children to non-discrimination, nationality and protection Far from promoting the culture of the people of the against statelessness in a decision issued on 25 March 2011.58 Lamu region, the government will in fact destroy local Following the adoption of the new Constitution, a culture as a result of the development and the influx of number of formal challenges to Nubian citizenship have skilled workers with their own cultures from neighbouring been eliminated.59 However, social discrimination is still cities. Many Lamu believe that ‘up-country’ people will pervasive. come to Lamu, dominating all aspects of Lamu’s institutions, causing them to become an oppressed Denial of community- minority. The Lamu Tour Guide Association Chairman does not welcome the upcoming modern port: determined development: ‘We have preserved a special identity and the cultural proposed Lamu Port heritage unique to this island because we only accept local people in our organization. Everything on the Kenya’s ambition is to become a newly industrialized, island is done on a small-scale basis. From tourism, ‘middle-income country … by the year 2030’60. To fishing to ship building, all the livelihoods that achieve this goal, the Kenyan state has designated series of sustain the island are localized much in the same way flagship programmes (known as Vision 2030), a number of when the island was first settled on around 1160 AD. them for areas occupied by minority and marginalized Only 5 per cent of the population have sufficient skills groups. These mega-projects, while having the potential to to seek employment at the proposed Port.’ 63 engender growth, can have harmful impacts on the livelihoods and cultures of indigenous groups, threatening In the past, local fishermen have hailed the Manda not only their identities but also their very survival. The Creek, next to Lamu town, as a shrimp sanctuary vital to Kenyan state’s approach to development, during the local subsistence fishermen. But now, construction of the colonial and postcolonial period,61 is to pursue quick port in this area would undoubtedly have a negative economic gains for the majority, at the expense of prior impact on their livelihood.64 Moreover, in order to begin consultation and participation of communities. This the port construction, pristine mangrove forests in the approach has exacerbated inequalities between and within Manda Bay area, from Mkanda Channel to Dodori Creek, communities, displaced communities from land would require extensive felling. Mangrove forests are the traditionally held by them, and often intensified the first line of defence against the rise in sea level associated poverty and vulnerability of certain communities. with global warming, and destruction of these forests Lamu is the largest town on Lamu Island, which is in would endanger this fragile eco-system and reduce its turn part of the Lamu archipelago. Lamu old town capacity to mitigate the effects of climate change.65 became a UNESCO World Heritage Site in 2001. It is Ironically, the government has for years denied the local one of the oldest and best-preserved continuously communities rights to harvest the mangrove forests occupied settlements among the Swahili towns on the East precisely on the ground that this would threaten the African coast, with origins dating back to the twelfth coastal eco-system.66 century AD. This area is home to several minority and Sanye, Boni and Bajuni watch these developments with indigenous groups – including the Bajuni, Boni, Sanye consternation. Years of state neglect is now giving way to and Swahili – and will soon see the development of a US massive grabbing of their forest, fishing and farming lands $20 billion port project called the Lamu Port–Southern in order to drive forward national and regional Sudan–Ethiopia Transport (Lapsset), one of the flagship developmental plans. While the proposed projects may projects of Vision 2030. When complete, the project will bring economic benefits for Kenya ‘in socio-cultural terms, comprise a port, an international airport and a refinery at they will spell the doom of the Lamu indigenous people’s Lamu, and a labyrinth of roads, railways and pipelines distinct culture and creed. They will also adversely affect covering Kenya, Ethiopia and South Sudan.62 the environment in Lamu.’67

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 15 Minorities and change: the new Constitution

Minority communities’ decent life, be socially integrated and participate in the development of the common good.’ 68 engagement in the struggle for a new constitution In 2002, another hunter-gatherer community, the Sengwer, went beyond the Ogiek and sought restitution of Minorities engaged quite robustly with the constitutional their ancestral land, including land annexed during the review process from 2000 on. Their engagement focused colonial period. Relying heavily on International Labour on educating their communities on the review process, Organization (ILO) Convention 169,69 the Sengwer collecting community views and submitting memoranda to submitted that: various institutions created to lead in Constitution making. There were common aspirations across many minority ‘When such return is not possible, as determined by groups: juridical recognition of their identity, access to agreement or, in the absence of such agreement, ancestral land and to participation in public life. Ogiek, for through appropriate procedures, these peoples shall be instance, made a passionate plea to the committee of provided in all possible cases with lands of quality experts on the constitutional review process in 2009, and legal status at least equal to that of the lands justifying their request for land rights in the Mau forest: previously occupied by them, suitable to provide for their present needs and future development. Where the ‘If a land restitution programme were run on the basis peoples concerned express a preference for of aboriginal title, Ogiek would be entitled to claim compensation in money or in kind, they shall be much of Kenya and the Mau Forest … Given present compensated under appropriate guarantees.’ 70 realities, such a course of action is not realistic … Ogiek request for recognition and land should not be The overall views of minorities submitted by the viewed in terms of restitution of traditional lands or Pastoralists and Hunter Gatherers Network on land were compensation for past injustices, but rather as an emphatic that: ‘All government land and Trust Land shall attempt to effect a more equitable present … Ogiek be surrendered to the local community in which it is calls for greater access to land are neither unrealistic situated and the community shall devise appropriate land nor unreasonable since they are bound up in present tenure system. No such community land shall be sold or socio-economic concerns and needs. The issue here is mortgaged.’71 not whether the Ogiek wish to re-tribalise the country The views of minorities on the Constitution and the but rather that they see themselves as entitled to have extent to which these views were incorporated by various access to land to make a living, that is to lead a organs of the review process are summarized in Table 3.

Table 3: Minority views during the Constitution Review Process

Minority Minority demands Bomas draft 2004 Referendum New Constitution 2010 group draft 2005

Ogiek Peoples’ The recognition of the Ogiek No explicit mention of ethnic Silent Article 206 defines minorities Development people as a distinct ethnic groups but ethnic diversity and marginalized groups to Program on community incorporated in recognized include hunter gatherer Behalf of the the Kenyan laws communities Ogieki

16 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Table 3: Minority views during the Constitution Review Process (continued)

Minority Minority demands Bomas draft 2004 Referendum New Constitution 2010 group draft 2005

The recognition and Land restitution contemplated Silent Land Commission restitution of Ogiek ancestral but no institutional framework established in Article 67 with lands in Kenya within the established for this except mandate including larger Mau forest complex through the Land investigation of land-related as contained in the Bomas Commission’s pursuance of historical dispossessions draft, chapters 7 and 8 its mandate to address ‘historical injustices’

Inclusion of Ogiek people in The Bomas draft provided for Silent Article 100 imposes an governance and in representation of marginalized obligation on parliament to government institutions groups in both the Senate and enact a law to facilitate through affirmative actio the House of Representatives ii political representation of and specifically required that marginalized groups parliament should be inclusive of all communities in Kenya including marginalized groupsiii

The implementation of a The Bomas draft provided four Provided for Chapter 11 provides for devolved government levels of devolution – national, two levels of devolution of power at two regional, district and village devolution levels – national and county –national and district

Sengwer Sengwer to be recognized Article 307 of the draft Ethnic Ethnic diversity recognized Indigenous as a separate and distinct identified the beneficiaries of diversity but no community is Peoples’ ethnic group in Kenya, minority rights protection iv recognized but explicitly mentioned Program on including in the census none explicitly behalf of the mentioned Sengwer

CEMIRIDE on There shall be a Similar provisions in favour of Article 85 Article 67 sets up a Land behalf of Constitutional Commission minorities and marginalized established a Commission that will make pastoralists to address historical groups were made in the Land recommendations for the and hunter injustices Bomas draft with regard to Commission resolution of historical land gatherers v devolution,vi public financing,vii with power to injustices. Presumably, other taxationvii representation in the investigate historical injustice questions public service,ix and within land injustices, are being addressed by Constitutional Commissionsx both present statutory bodies such as the and historical, TJRC and NCIC and “ensure appropriate redress”

This Constitution shall Participation of minorities Silent Various provisions recognize obligate the state to integrated in various provisions right to culture, land, recognize the rights of political participation and indigenous peoples as non-discrimination of stipulated by various minorities and indigenous international instruments groups and standards

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 17 Table 3: Minority views during the Constitution Review Process (continued)

Minority Minority demands Bomas draft 2004 Referendum New Constitution 2010 group draft 2005

Alternative Dispute Article 85(2) (I) encouraged the Article 85(2) (I) Article 67 (2) (f) encourages Resolution (traditional application of traditionally encourage the the application of traditional methods of conflict resolution accepted systems of dispute application of dispute resolution shall be strengthened in the resolution in land disputes by traditionally mechanisms in land Constitution and shall run the Land Commission; Article accepted conflicts; enjoins courts to alongside conventional 184(3) (c) established systems of apply traditional dispute system Traditional Courts as courts dispute resolution mechanisms that subordinate to the High Court resolution in are consistent with the land disputes constitution in Article by the Land 159(2) (c) Commission.

The Office of Ombudsman for Article 298(1) (d) established Silent Establishes the Commission Minorities shall be the Commission on Human on Human Rights and constitutionally provisioned to Rights and Administrative Administrative Justice as deal with administrative Justice. One member of the one of the Human Rights disputes Commission shall be a and Equality Commissions Minority Rights Commissioner, envisioned under Article 59, who shall have special but does not designate a responsibility for the rights of specific Minority Rights ethnic and religious minorities Commissioner and marginalized communities

NOTES FOR TABLE 3: v MEMORANDUM TO THE CONSTITUTION OF KENYA REVIEW COMMISSION BY THE PASTORALISTS i OGIEK VIEWS TO THE COMMITTEE OF EXPERTS (2009) AT AND HUNTER GATHERERS ETHNIC MINORITIES NETWORK, JULY 2002, HTTP://WWW.FORESTGUARDIAN.NET/NEWS/NEWS-00-09-1.HTM> HTTP://WWW.OGIEK.ORG/SITEMAP/CASE-MEMORANDUM.HTM ii KENYA CONSTITUTION (2010), ARTICLES 101, 114(5), 122(1)(C) AND 123(1)(C). vi BOMAS DRAFT, 2004, ARTICLES 206(1)(E), 219(C) AND 234. iii IBID., ARTICLE 124(A). vii IBID., ARTICLES 236, 250(2), 259(5)(B) AND 259(6)(H). iv ARTICLE 307, WHICH IS THE INTERPRETIVE PROVISION OF THE BOMAS DRAFT, DEFINED viii IBID., ARTICLE 240(G). ‘MARGINALIZED COMMUNITY’ AND ‘MARGINALIZED GROUP’ IN THE SAME TERMS AS ARTICLE 206 ix IBID., ARTICLE 263(1)(K). OF THE CONSTITUTION ADOPTED IN AUGUST 2010. x IBID., ARTICLE 298(1).

In the numerous Kenyan Constitutions, minority rights have been protected to varying degrees, as highlighted in Table 4.

Table 4: Minority rights in Kenyan Constitutions

Issue of concern Independence 1967–2009 Constitution New Constitution to minorities Constitution, 1963

Non-discrimination Discrimination on Discrimination on ethnic, The prohibited classes in relation to ethnic, racial or racial, national or gender discrimination are expanded to include national grounds grounds prohibited marital status, health status, disability, prohibited dress, culture, etc. (Article 27(4))

Recognition of Silent Silent Recognition of collective rights, right to identity culture and diversity signals strong appreciation of identity

Definitions of marginalized communities and marginalized groups in Article 260 identify groups that could benefit from affirmative action under Article 56

18 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Table 4: Minority rights in Kenyan Constitutions (continued)

Issue of concern Independence 1967–2009 Constitution New Constitution to minorities Constitution, 1963

Land rights Silent save for Silent except for protection Land tenure clearly defined, including protection of property of property rights in creation of community land in Article 63 rights and the creation section 75 and the Trust and non-protection of unlawfully acquired of the Trust Land Land system in sections property in Article 43 regime 114–117

Political Regional assemblies 12 Reserved Seats for New Constitution emphasizes participation which enabled special interest groups participation of all citizens in public minorities to provided for in section processes. Article 100 requires parliament participate in political 33(1) to legislate to facilitate participation of processes; quota minorities in the senate and national system for special assembly. Article 177 also requires that interest groups minorities be represented in county assemblies

Revenue Executive authority Parliamentary approval for Article 204 earmarks 0.5% of annual state allocation with parliamentary public expenditure revenue for the development of sanction. No specific required but no specific marginalized areas in addition to 15% of allocation for minorities public funds earmarked for national revenue being allocated for direct marginalized groups’ transfers to county governments development

Affirmative action Silent Silent Affirmative action for minorities (Article to address 56), persons with disabilities (54(2)), youth historical wrongs (Article 55) entrenched in the Constitution.

Gender issues Silent Silent State mandated to ensure through legislation that no elective and appointive body has more than 67% of one gender (Article. 27(8)). No specific safeguards for women from minority groups in this gender quota

SOURCE: CREATED BY THE AUTHOR BASED ON COMPARISONS OF THE VARIOUS DRAFT CONSTITUTIONAL TEXTS/SUBMISSIONS.

Kenya’s constitutional Speciﬁc safeguards protections for minorities Kenya’s 2010 Constitution provides a rich and complex array of civil and political rights, social-economic rights and group rights. Kenya’s bill of rights is greatly inspired Kenya’s 2010 Constitution protects the rights of by the 1996 South African Constitution, as evidenced by minorities in three ways. First, it makes substantive the emphasis on rights as vehicles for the preservation of provision to address specific concerns of these individual and communal dignity, the promotion of social communities. Second, it mainstreams concerns of justice and the realization of human potential,72 and it minorities into institutions of government including curtails attempts to limit rights, often used by African political parties. Last, it creates institutions and governments in the name of public order. Through Article mechanisms that, if effectively implemented, could 24, the 2010 Constitution explains that constitutionally empower minorities and other groups. protected human rights can be circumscribed only by a specific law, and that such limitation will be permissible

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 19 only if it is ‘reasonable and justifiable in an open and groups more than others. Article 27 prohibits democratic society based on human dignity’. Courts are discrimination perpetrated by individuals and corporations, therefore required not to take statutes that seek to limit as well as the government. This is particularly important rights as definitive, but to comprehensively scrutinize the given that most violations of the rights of minority groups extent to which these limitations are permissible against are perpetrated by corporate actors. the rigorous test established by Article 24. Even though the 2010 Kenyan Constitution prohibits Another notable innovation in the bill of rights relates discrimination, it also recognizes the existence of past to the fact that it is binding not just upon state organs but discrimination. To address this, the Constitution also on private persons.73 This will put increased pressure recognizes the need for affirmative action programmes and on non-state actors to take positive action not to violate policies in order to redress any past disadvantages caused the constitutionally protected rights of communities and by state policy or practice, an experience which many individuals. minorities have gone through.76 Article 22, the enforcement of the bill of rights, Courts have already spoken on the provisions of accords every individual the right to institute court Article 27 of the Constitution. In August 2011, six proceedings. Article 22(2)(b) goes further to allow a women’s rights organizations filed a case challenging the person to institute proceedings either as a member of or in decision of the Judicial Service Commission (JSC) to the interest of a group or class of persons, while Article recommend to the president the appointment of five 22(2)(c) allows for proceedings by persons acting in the judges to the Supreme Court. The women’s rights public interest. This is particularly important for the organizations argued that the JSC violated the provisions enforcement of indigenous rights, given their collective of Article 27 of the Constitution, which require that not nature. Collective rights proved arduous to enforce under more than two-thirds of the members of elective or the previous constitutional order, under which most cases appointive bodies should be of the same gender. The High were interpreted as recognizing claims by individuals. This Court dismissed the case, saying that: experience can be attested to by communities such as the Endorois.74 This position is further enforced by Article ‘ the distinction has the effect of imposing a burden, 22(3), which calls for the formalities associated with court obligation or disadvantage not imposed upon others or proceedings to be minimized and, where necessary, for of withholding or obstructing this access to benefits or informal documentation be accepted. Article 22 states that advantage which are available to others is an essential no fee should be charged for commencing such and important criteria [sic] to determine the proceedings and the court should not to be unreasonably violation.’ 77 restricted by procedural technicalities. However, the Court ruled that ‘Article 27(8) does not Non-discrimination create any duty or a right which can be directed Article 27(4) prohibits discrimination on the basis of definitively against the 2nd Respondent (government) to ethnic or social origin, religion, conscience, belief, culture, perform its functions in a particular manner’.78 The dress or language. Article 27(6) further calls on the state to Court’s ruling suggests, quite erroneously, that in the undertake, ‘legislative and other measures, including absence of enabling legislation, Article 27(8) is aspirational affirmative action programmes and policies designed to at best. redress any disadvantage suffered by individuals or groups Earlier in 2011, the High Court in Mombasa because of past discrimination’. This article prohibits both issued orders to restrain the Immigration Ministry from direct and indirect discrimination. Direct discrimination enforcing an administrative circular requiring people of consists of measures adopted by a state that intentionally Arab and Asian identity to produce documentary proof of disadvantage an individual or group on the basis of a ancestry beyond those required of other Kenyans, and to prohibited ground, such as race or nationality. Indirect be subjected to a verification process known as ‘vetting’ discrimination occurs when a seemingly neutral provision before being granted identity cards or passports. The or practice disproportionately impacts a particular group, Court ruled the circular a nullity for ‘singling out Kenyan without objective and reasonable justification.75 This means Arabs and Asians as communities members of which must that, in assessing the existence or otherwise of supply parents’ and grandparents’ birth certificates before discriminatory treatment, courts will not only look at being issued with national identity cards’.79 conduct or policy that differentiates groups and result in disadvantage. It will also explore conduct and policy which Economic, social and cultural rights may not appear discriminatory on paper but which, when The majority of marginalized communities lack access to applied, create disproportionate disadvantage for some basic amenities such as water, food and shelter. Areas

20 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES occupied by marginalized groups such as Pokot or of the Railway Pension Fund with the right to housing of Turkana, who suffer from perpetual famine and poverty,80 a vulnerable group, the Court observed that it appreciated: received constitutional concern through Article 43, which catalogues the economic and social rights guaranteed ‘The 1st respondent’s good intentions of developing under the Constitution to include the right to health, modern residential and commercial properties on the adequate housing, clean and safe water, social security and suit land … and [recognized] that the said education. While the social and economic rights provided developments cannot be undertaken while the tenants in Article 43 are to be realized progressively, the state is of Muthurwa Estate remain in occupation of the precluded from merely relying on the commonly used dilapidated houses.’ justification that it has insufficient resources to meet the specific obligation. The new Constitution shifts the However, the Court noted that it could not ‘overlook burden of proof onto the state to provide evidence of the fundamental rights of the tenants’ to accessible and inadequate resources. Courts are empowered to scrutinize adequate housing as required under Article 43(b) of the state priorities in resource allocation to ensure that the Constitution and urged the state to address the ‘problem state is not merely evading its obligation to satisfy social of informal settlements in urban areas … and the issue of and economic rights protected under the Constitution. In forced evictions [through developing] clear policy and particular, the Constitution requires courts to scrutinize legal guidelines relating thereto’.84 the government’s resource allocation priorities to ensure their responsiveness to ‘the vulnerability of particular Afﬁrmative action for marginalized communities groups and individuals’.81 The Constitution also elaborates certain rights to be Courts are already testing the constitutional applied to certain vulnerable groups, including youth, content of Article 43. A community of over 1,000 persons with disability and the aged. In this respect, residents in Garissa province filed a suit to seek to prevent Article 56 of the Constitution calls for the application of the government from evicting petitioners from a piece of affirmative action programmes in favour of minorities and land they had been occupying for several years, or to marginalized groups. Such programmes should be provide the petitioners with emergency alternative designed to ensure: their participation in governance; housing, food, clean and safe drinking water, sanitary access to educational and economic activities; access to facilities and health care services. On 28 February 2011, employment; development of their cultural values, the Court granted all the above orders, pending the languages and practices; and access to water, health hearing of the application inter partes.82 services and infrastructure. Affirmative action is defined in In May 2011, a community in Moroto Mombasa Article 260 of the Constitution as: ‘any measure designed challenged their eviction from public land, which they to overcome or ameliorate an inequity or the systemic alleged had been irregularly sold to a private party, named denial or infringement of a right or fundamental freedom’. Jama Abdi Noor. Over 276 families sought Court While the aim of affirmative action is to enhance the protection of their houses from demolition based on the participation of marginalized groups in decision-making, constitutional protection of housing rights in Article 43. the gap between policy and practice is still wide, given the But the Court declined to grant their request, arguing that present reality of life for many minority groups in the Article 21(2) meant that the right to housing in Article 43 country. ‘was an aspirational right, which the state is to endeavour to render progressively’.83 Mainstreaming of concerns of In contrast, High Court judge Justice Daniel Musinga issued orders to stop the Staff Retirement Pension Fund of minorities the Kenya Railway Cooperation from evicting and demolishing the houses occupied by the petitioners, who Land and environment had lived as tenants of Muthurwa Estate, a slum in In a departure from previous Constitutions, the 2010 Eastleigh area of Nairobi since 1979. The judge also Constitution anchors land relations in Kenya on principles ordered the Railway Pension Fund to stop disconnecting set out in the National Land Policy.85 These principles the water supply from these houses in order to force include the need for secure land rights and encourage tenants to leave and make way for the development of a communities to deploy ‘recognized local initiatives’ to modern housing estate. The residents of Muthurwa argued resolve land disputes. These principles are consistent with that this action would violate their social and economic the informal approach to disputes of indigenous groups, rights to housing and water provided by Article 43 of the such as pastoralists, which were previously subordinated Constitution. While seeking to balance the property rights by the constitutional and legal regime in Kenya. However,

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 21 the 2010 Constitution is also clear that local initiatives for ensure policy and legislative development in the land dispute resolution must comply with the Constitution, so sector. Further, the fact that the same Commission is that if such approaches promote discrimination, including vested with power to investigate historical and present in gender relations, they will be found to be incompatible land injustices provides a great opportunity for minorities with the Constitution. These principles further embody such as Ogiek and Nubians, to bring their issues for sensitivity to the gendered nature of land relations by resolution through the Land Commission. calling for the ‘elimination of gender discrimination in law, custom and practices related to land’.86 Devolved government and enhanced public While the previous Constitution did not create a support for marginalized groups distinction based on citizenship with regard to property The transfer of decision-making to authorities at sub- rights, the 2010 Constitution limits non-citizens’ right to national level is one of the important devices for land to leaseholds whose terms shall not exceed a period of increasing the participation of minorities in governance.90 99 years.87 Designed to facilitate greater access to land by Recognizing that the over-concentration of power at the Kenyan citizens, this provision, while welcome to many centre has been blamed for some of the conflicts witnessed minorities, is defeated by the provision of Article 62(1)(c), in Kenya, including the PEV,91 Article 174 of the which defines such land not as community land, but as Constitution is clear that the objectives of devolution public land held by the county government in trust for the include fostering national unity by recognizing diversity, residents of the county.88 and recognizing the right of communities to manage their Articles 62, 63 and 64 of the 2010 Constitution create own affairs and to further their development. three land tenure categories: public land, community land Each of the 47 counties established by the and private land. Public land, held by the government in Constitution92 shall have legislative and executive organs, trust for the people of Kenya and residents of the specific the county assembly and county executive respectively. county respectively, shall be administered by the National Each county assembly will have representatives from Land Commission created under Article 67. It is ‘marginalized groups, including persons with disabilities noteworthy that the scope of public land has now been and the youth’,93 elected through proportional expanded to include not only ‘unalienated’ government representation. Parliament is mandated to legislate so that land but also game reserves and land surrendered to the membership of both county assembly and county government by way of reversion.89 This may present executive reflects the ‘cultural diversity of a county’ and so specific challenges for minorities, particularly those living that minorities within counties are protected.94 on the Kenyan Coast, where most land is presently By virtue of Article 203(2) of the Constitution, managed as government land. Undue expansion of public counties will be beneficiaries of an annual unconditional land to include ‘game reserves’ and land transferred to the grant of at least 15 per cent of national revenue to enable Republic by way of reversion or surrender in Article them to provide services to citizens at the county level. A 62(1)(c) of the Constitution may also prove problematic. Revenue Allocation Commission has been established to This is a major issue of contention in most areas inhabited regularly formulate policy and operational means for by minorities – particularly for the Maasai in Laikipia and equitable sharing of revenue raised by the national in Northern Kenya – which has often led to tribal/ethnic government.94 conflicts. It has also led to serious tensions between Article 62(2) of the Constitution provides that county conservation efforts and the rights of communities living governments shall hold certain categories of public land in within these regions, and impeded the development of trust for the people resident in the county. This means pastoralists’ enterprises. that the survival and integrity of the county structure is The 2010 Constitution also creates community tenure, critical for the security of land relations in a given county. defined to include land ‘lawfully held as trust land by Yet without their main revenue source, game reserves, the county governments’ and ancestral lands traditionally security of these structures, particularly those in occupied by hunter-gatherer communities. While creating pastoralists’ areas, is now in doubt.96 As a trade-off, Article community land aims to address the problems created by 204(2) of the Constitution earmarks 0.5 per cent of both the previous Trust Land Act and Group Ranch laws national revenue on an annual basis (for an initial 20-year (especially among pastoralists), minorities must be vigilant period) for the Equalization Fund, which shall be used to to ensure that the enabling law, to be enacted by ‘provide basic services including water, roads, health parliament, does not take away from the gains intended by facilities and electricity to marginalized areas’. the Constitution. The analysis provided above is indicative of the The establishment of the National Land Commission complexity of the devolution scheme presented in the new (NLC), proposed by Article 67 is a positive step that will Constitution, and therefore requires the sustained focus of

22 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES minority advocacy groups. The 47 counties vary in terms of ethnic diversity, counties in central, western, north- Current status of eastern and Nyanza regions are more ethnically constitutional implementation homogeneous than those in Nairobi, Rift Valley and the Coast. Academics Professor Yash Ghai and Jill Cottrell in relation to minority rights caution that self-governance as an objective of devolution will only be realized in heterogeneous counties if: Developments since the adoption of the new Constitution in 2010 point to limited change in the way the Kenyan ‘there are political or semi-administrative units below state and non-state actors approach the question of the county government … There is real danger that minorities. During this period, evictions from land have most new activities would take place at the county continued to plague many minority groups, in absolute capital – so many communities would be denied both disregard of the new Constitution.101 The government has representation and participation – unless very pursued the justifiable resettlement of internally displaced deliberate efforts are made.’ 97 persons (IDPs), in some cases without regard to the fact that some minorities too, such as Maasai, Samburu and Minorities have cautiously welcomed the devolution of Ogiek, have also been rendered landless by state-induced power to counties, but are uncertain about how they will processes.102 Courts have continued to mete out hostile be able to participate in the new units. A professional from and contradictory determinations on questions of concern one minority group doubted that devolution will lead to to minorities, while the state has failed to internalize the increased participation: ‘I am an internally displaced findings of human rights treaty bodies, unrepentant of the member of the Sabaot community in Kinyoro without any reality of Article 2(6) of the new Constitution, which realistic chances of ascending to real leadership position in automatically domesticates international treaties ratified West Pokot, Bungoma or Trans-Nzoia Counties … How is by Kenya.103 the Constitution going to right the lost opportunities The media discourse on the inclusion of marginalized …?’98 Counties such as Isiolo and Garissa are already groups has focused solely on gender concerns, while failing witnessing increased incidence of ethnic violence. At the to highlight the need to also ensure the participation of centre of these conflicts is the fear of marginalization: ethnic minorities. Additionally, the media has failed to expose the hierarchies within the women’s rights ‘The expansionism into Isiolo by some communities movement itself, even though rural women, most of and their attempt to seize political control within the whom are from minority groups, never benefit from county to the disadvantage of the indigenous Borana, gender quotas targeting women generally. Even when the the manipulation of the border between Isiolo and media has covered issues affecting minority communities, Meru counties and government intention to transform it has failed to interrogate the possibility that minority Isiolo into a resort city are in combination stirring the rights discourse may be co-opted to serve the interests of most intense competition over natural resources and dominant political actors. Laws adopted or being political power.’ 99 considered for adoption by the National Assembly have betrayed a total lack commitment to ensuring that Despite these misgivings, local consensus-building minorities are a functional part of the new Kenya. The processes are taking place within multi-ethnic counties. exception to this development relates to the draft laws For instance, there is an ongoing dialogue between the designed to implement provisions of the new Kuria and Luo in Migori county to secure pre-election decentralization arrangements, which have demonstrated agreements on how to share political positions at the an increased responsiveness to minority concerns.105 county assembly. The idea behind the consensus-building Even though lessons learned in the two decade long process is that while Luos are dominant in Migori and can process leading to a new constitutional dispensation secure most positions at the county level, the stability of emphasize the importance of collaboration between the the county depends also on the extent of inclusion of the state and civil society, relations between civil society and Kuria minority.100 The emerging practice demonstrates a the Kenyan government remain precarious at best and bottom-up appreciation for inclusive democracy and tense at worst. Constitutional implementation is made equitable resource-sharing. more difficult given that it is happening within the context of the struggle to break the back of impunity through the ICC process, as well as preparatory campaigns for 2012 elections. While the situation of mainstream human rights NGOs remains precarious, organizations

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 23 working on minority rights issues are in an even more Most minority groups view the recognition of minority difficult position. This presents unique challenges in the rights in the Constitution and appreciation for cultural context of monitoring and engagement with a fairly rapid diversity positively.106 However, the constitutional and complex legislative process moving towards provisions of relevance to minorities such as devolution, implementation of core provisions of the new representation and the land chapter remain least Constitution. understood: On a positive note, parliament enacted the Environment and Land Court Bill in August 2011, to implement aspects ‘The new Constitution has provision for everyone, but of land reform envisaged by the new Constitution and the the pastoralist communities don’t understand it. There Land Policy. This law seeks to establish a superior court that are also a lot of political changes in terms of will hear and determine disputes relating to the representation. We need massive civic education so environment and the use and occupation of land. The law that pastoralist communities can be empowered to opens the door to using traditional dispute resolution make the best of this Constitution. Otherwise the mechanisms when it comes to land, and repeals the pastoralist communities could end up fighting over ineffective Land Disputes Tribunal Act. who gets the seats.’ 107

24 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Constitutionalizing minority rights in Africa

Affirmative action, whether through special quotas in constitute more than a fifth of the members of political organs of the state or the establishment of funding council.’ 110 mechanisms, is becoming a common feature for addressing historical inequity directed at ethnic minorities and women Institutional arrangements specifically targeting in a number of African countries. In Uganda for instance, minority groups have been set up in a number of states. In Article 32 of the 1995 Ugandan Constitution enjoins the South Africa for instance, the Constitution established the state ‘to take affirmative action in favour of groups Commission for the Promotion and Protection of the marginalized on the basis of gender, age, disability or any Rights of Cultural, Linguistic and Religious Communities, other reason created by history, tradition or custom for tasked with upholding respect for rules, principles, purposes of redressing imbalances that exist against them’. traditions, languages and mores of society, in accordance In this regard the Constitution mandates parliament to with the Cultural Charter for Africa.111 This body has been enact appropriate laws, including laws to establish an Equal starved of funding, however, to the extent that the Opportunities Commission (EOC) for the purpose of Commission has been unable to meet its basic overhead giving full effect to Article 32(1). Article 36 guarantees the costs, let alone discharge its mandate.112 Similarly, South right of ethnic minorities to fully participate in the Africa’s land redistribution programme was ushered in by development process as well as in decision-making that the post-apartheid Constitution (1996), section 25(7) of affects their welfare. While affirmative action measures which contains language that has been used by indigenous focused on women have often been implemented, those groups to reclaim lost territories: measures directed towards minority groups have not received enthusiastic follow-through. In Uganda’s case, the ‘a person or community dispossessed of property after EOC envisioned in the Constitution was only established 19 June 1913 as a result of past racially in 2007, over ten years after the adoption the discriminatory laws or practices is entitled, to the Constitution,108 and its impact on improving the situation extent provided by an Act of parliament, either to of minorities has been negligible at best. restitution of that property or equitable redress’. Similarly, the Burundian Constitution provides in Articles 143, 164 and 180 respectively for proportionate The 1994 Restitution of Land Rights Act created a ethnic representation in public enterprises, the National Land Claims Court and a Commission on Restitution of Assembly and the Senate.109 The explicit mention of Twa, Land Rights. While these institutions have made an indigenous forest community, as beneficiaries of this remarkable efforts in discharging their roles, it has been ethnic quota constitutes the highest level of identification. argued that they have largely ‘failed to redress the moral In the case of Burundi, this constitutional intent has been harm done to victims of apartheid forced removals’.113 embodied in the Electoral Code thus: The cautionary tale for minorities in Kenya is that these affirmative action measures and institutions ‘Each list must take into account the ethnic diversity established across a number of African states have not and gender participation … Any time, in case the lifted vulnerable groups from their destitution, nor composition of a municipal council would not reflect protected their lands and resources from wanton ethnic diversity, the National Independent Electoral spoliation without compensation. Constant engagement Commission, may order cooptation in the Council of with new institutional opportunities is the surer way of persons coming from a sub-represented ethnic group consolidating any normative gains, whether in Kenya or on condition that the persons so co-opted do not elsewhere in the continent.

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 25 Conclusion

Since 2007, it is generally acknowledged that Kenya is a legislative and administrative language as well as highly divided country. In this context, the place of operational guidelines for state officials. To do this calls for minority rights protection becomes even more paramount more dogged and consistent technical engagement with for national stability. This report has shown that Kenya’s the process in a way that organized groups working on new Constitution contains numerous positive provisions indigenous and minority rights have not demonstrated for minorities and other vulnerable groups generally: it over the same period. The obvious demands for capacity recognizes the legal validity of treaty law in Kenya’s legal will be crucial. The danger therefore is that, as in Uganda, corpus; incorporates a rich array of both civil and political where constitutional recognition has not translated into Since 2007, it is generally acknowledged that Kenya is a empirical positive interventions in favour of minorities, highly divided country. In this context, the place of the situation of minorities in Kenya will not undergo minority rights protection becomes even more paramount positive qualitative transformation. for national stability. This report has shown that Kenya’s This report also shows that civil society action alone is new Constitution contains numerous positive provisions not enough to ensure increased inclusion of minorities in for minorities and other vulnerable groups generally: it Kenya’s public life. The state needs to deliberately recognizes the legal validity of treaty law in Kenya’s legal overcome its attitude towards minorities, which regards corpus; incorporates a rich array of both civil and political the latter as only seeking to veto national processes, rights and social and economic rights of huge benefit to especially in the context of development. It should minority groups; and mandates judicial authority in the wholeheartedly embrace international standards relative to country to deploy alternative dispute resolutions, minorities, most of which are now part of Kenyan law by including cultural mechanisms that are not reprehensible virtue of Article 2(6) of the Constitution. It should also do to the new Constitution’s spirit to resolve disputes. The more to create programmes that redress minority new Constitution further establishes important disadvantage, in order to bring a permanent end to institutions whose operations will have important bearings minorities being dominated. Given the complex on the overall well-being of minority groupings. concentration of minorities within Kenya’s new counties, The success of mainstreaming concerns of minorities it is imperative that cultural dialogues take place to address in relation to land and human rights, as well as enhanced the fears of both majorities and minorities as an integral allocation of public sector funding to meet social- part of nation building. Such a dialogue should push state economic challenges of communities has been articulated departments to initiate laws and policies that recognize in the report. Civil society gains in this regard were largely historical disadvantages and that enable both majority and brought about by visible and active campaigns waged minority communities to perceive each other as partners through the media and in the streets during the last ten in society. Kenya’s emergent institutional arrangements years. Despite these positive developments, the report has including the Constitutional Implementation outlined that the prevailing experience of minorities is Commission (CIC), TJRC and NCIC are well placed to increased vulnerability. This means that, although ensure that the progressive provisions in the new recognition of minorities in terms of policy is an Constitution advance the protection of minorities for important gain, it needs to be translated into substantive national stability.

26 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Recommendations

1. The Kenyan state, development partners and civil 6. The Kenyan government must develop adequate society must urgently roll out a comprehensive civic capacity to enforce judicial decisions of international education programme to benefit all communities, or regional human rights treaty bodies. In particular, including those in the margins of society. This civic the Kenyan government should prioritize the full education must also target public servants, particularly implementation of the Endorois decision by the the police, who are instructed by the Constitution to African Commission. address the needs of vulnerable groups. 7. The Kenyan state should formulate a framework for 2. Parliament and the CIC must urgently initiate engaging with the recommendations of UN legislation to give immediate effect to the mechanisms including the Universal Periodic Review constitutional provisions on affirmative action for process, and recommendations of special mechanisms. marginalized groups and their representation in 8. The Kenyan state, donors and civil society are urged political organs of the state, and fast track the to prioritize the clarification of the land provisions in enactment of a law to establish the NLC. In doing so, the new Constitution and the National Land Policy parliament and the CIC should ensure adequate relating particularly to the transition of Trust Land to consultation with members of marginalized groups. Community Land and the role of county governments 3. The Kenyan government must ensure that deeper in land management. In this regard, the Kenyan state decentralization of development funding does not should prioritize the establishment of the National exacerbate the exclusion of marginalized groups. The Land Commission set up by Article 67 of the state, development partners and civil society should Constitution, and ensure that this Commission work together to formulate a national strategy to includes members of minority groups. include marginalized groups at all levels of governance. 9. The Kenyan government is urged to re-align its Vision In this regard also, the state is urged to map minorities 2030 to incorporate specific safeguards for minority at the county level and ensure sufficient safeguards groups. Development-induced displacement is before the 2012 elections. emerging as the most significant threat to the survival 4. Independent commissions, notably the Truth, Justice and cultural integrity of minority communities across and Reconciliation Commission, CIC, National the country. Cohesion and Integration Commission, Kenya 10. The Kenyan government must ensure that women, National Commission on Human Rights, the Revenue youth and persons with disabilities from minority Allocation Commission, etc. must develop clear groups benefit from the emerging political and policies to engage with the particular challenges of economic spaces created by the new Constitution. marginalized groups. 11.The Kenyan state and independent commissions 5. Donors are urged to prioritize support designed to should urgently develop mechanisms to ensure that enhance the capacity of marginalized groups’ civil non-state actors participate in governance and that society to mount successful public interest litigation to such participation is effective and inclusive of maximize the expanded potential of courts to mediate minorities. group and individual rights.

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 27 Notes

1 Kenya 2009 Population and Housing Census Results, 31 13 Ghai, Y. and Cottrell J., Kenya’s Constitution: An Instrument August 2010, http://www.planning.go.ke/index.php? for Change, Nairobi, Katiba Institute, 2011, p. 40. option=com_docman&task=doc_view&gid=30&tmpl 14 Shaw, M.N., ‘The definition of minorities in international law’, =component&format=raw&Itemid=69 in Dinstein, Y. and Tabory, M. (eds) The Protection of 2 Postcolonial self-determination has been limited. Eritrea and Minorities and Human Rights, Netherlands, Martinus Nijhoff, more recently Southern Sudan are the only new states to 1992, p. 1. Shaw opines: have been created during the decolonization era. All other attempts at secession in Africa have not been recognized ‘While a precise definition may serve to minimize controversy (e.g. Katanga (Congo), British Somaliland (Somalia), Northern by drawing the bounds in a clear fashion, thus fitting the Frontier Districts (Kenya), Caprivi (Botswana) and Mayotte relevant rights to undeniable claimants, on the other hand, (Comoros)). The two-decade long conflict in Somalia and the controversy may not be easily avoided in view of the range recent changes in Maghreb Africa could dramatically alter and extent of the diverse groups that exist across the globe this picture. distinguished by factors that are often confused, complicated 3 See Robert, J. and Roseberg, C., ‘Why Africa’s weak states and contradictory. It thus makes it virtually impossible to list persist: the empirical and juridical statehood’, World Politics, all the minorities that exist.’ vol. 35, no. 1, 1982, pp. 1–24. 4 The principles of uti possidetis required states to assume the 15 ‘The existence of a … minority in a given state party does inheritance of their colonial borders unless the colonial not depend upon a decision by the state party, but requires power(s) or another decision maker, such as the United to be established by objective criteria.’ Human Rights Nations, had determined otherwise. See Article 4 (b) of the Committee, General Comment 23, Article 27 (Fiftieth session, African Union’s Constitutive Act and Article 3(3) of the 1994), Compilation of General Comments and General Charter of the Organization of African Unity. Recommendations Adopted by Human Rights Treaty Bodies, 5 This is despite the Concluding Recommendations of the UN Doc. HRI/GEN/1/Rev.1 at 38, 1994, Committee on the International Covenant on Economic, http://www1.umn.edu/humanrts/gencomm/hrcom23.htm Social and Cultural Rights in 2008 that Kenya should provide 16 See generally, Korir Sing’Oei, A., ‘Impact of statelessness on data on ethnicity with specific reference to Nubians and human rights in Kenya’, in Blitz, B. and Lynch, M. (eds), Ogiek. Committee on Economic, Social and Cultural Rights, Statelessness and the Benefits of Citizenship: A Comparative Concluding Observations on Kenya, November 2008, para. Study, Geneva, Geneva Academy of International 35, http://www2.ohchr.org/english/bodies/cescr/docs/ Humanitarian Law and Human Rights and International E.C.12.KEN.CO.1_EN.pdf Observatory on Statelessness, 2009, pp. 38–50. 6 Nubians state that the CBS data is inaccurate as only 17 Kenya Constitution, 1963, part VI. Nubians in Kibera were informed about the community’s 18 Through two schemes, the Million Acres Scheme and census code. Nubian focus group discussion, Kibera, 7 settlement trust fund mechanisms, land was acquired in the October 2011. For the significance of data disaggregation to Rift Valley to the prejudice of minorities. See Leo, C., ‘Who the Nubian community, see Balaton-Chrimes, S., ‘Counting benefitted from the Million Acre Scheme? Toward a class as citizens: the case of the Nubians in the 2009 Kenyan analysis of Kenya’s transition to independence’, Canadian Census’, Ethnopolitics, vol. 10, no. 2, 2011, pp. 205–18. Journal of African Studies, vol. 15, no. 2, 1981, pp. 201–222. 7 Odhiambo Makoloo M., Kenya: Minorities, Indigenous 19 Moi’s Tugen community, at the time was deemed a minority Peoples and Ethnic Diversity, London, MRG, 2005, p. 23. within the larger Kalenjin. This was before Moi abolished all 8 One of the criteria for minority or indigenous status is self- sub identities and subsumed them within the larger rubric of identification. See, African Commission on Human and Kalenjin for political reasons Peoples’ Rights, Report of the African Commission’s 20 Because minorities, particularly pastoralists, live in Working Group of Experts on Indigenous Populations geographically isolated enclaves of northern Kenya, with and Communities, Copenhagen, Eks/Skolens Trykker, limited or no infrastructure, KANU, which had been in power 2005, p. 89. from independence till 2002, was the only political party with 9 Makoloo, op. cit. the monetary and propaganda capability to mobilize 10 Thornberry, P., International Law and the Rights of Minorities, communities in these regions. The nascent opposition, Oxford, Clarendon Press, 1991, p. 13. fragmented by internal schisms, was portrayed as an urban 11 Matheson, I., Kenya Six Months On: A New Beginning or force funded and sustained by foreign powers with no Business as Usual? London, MRG, 28 August 2008. interest in the development of rural communities. 12 The Commission of Inquiry into Post Electoral Violence 21 Ogiek bore the brunt of the Moi government’s policy and (CIPEV) revealed that 1,300 people were killed, an estimated forest land was often annexed for the benefit of politically 300,000 others displaced, and more than 900 women were favoured individuals. See Government of Kenya, Report of raped. Most of the deaths, rapes and displacement took the Presidential Commission into the Irregular-Illegal place in the Rift Valley. The communities most affected were Allocation of Public Land (Ndungu Report), Nairobi, Kikuyu, Luo and Kalenjin. See, Republic of Kenya, Report of Government Printer, 2004. the Commission of Inquiry into Post Electoral Violence, 2008, 22 CNN, ‘Kenya’s ostracized Nubians’, 28 September 2010, http://www.dialoguekenya.org/docs/PEVReport1.pdf http://articles.cnn.com/2010-09-28/world/kenya.nubians

28 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES _1_kenyan-citizens-king-s-african-rifles-east- 42 Interview with Andrew Korinko, Olkaria community leader in africa?_s=PM:WORLD Naivasha. 23 The Presidential Action Committee to Address Specific 43 Interview with Charo Wa Yaa, Mombasa, 20 August 2011. Concerns of the Muslim Community in Regard to Alleged 44 Samburu FGD. Harassment and/or Discrimination in the Application/ 45 FGDs were held in Kibera (Nubians), Tindiret Forest (Ogiek) Enforcement of the law. This committee’s report, submitted and Kitale (Turkana) on 13, 14 and 15 October 2011. in July 2009, has never been made public. See, Office of 46 Korir Sing’Oei, A., ‘Customary law and conflict resolution Public Communication, ‘No one will be discriminated – among Kenya’s pastoralist communities’, Indigenous Affairs, president assures Muslim community’, 22 July, 2009, no. 1–2, 2010, http://www.iwgia.org/iwgia_files http://www.communication.go.ke/news.asp?id=253 _publications.../0470_IA_1_2_2010.pdf 24 Alamin Kimathi, a human rights activist, became the latest 47 Ghai, Y., Public Participation and Minorities, London, MRG, victim when he was extradited to Uganda without due 2003, p. 5. process. See, Rice, X., ‘Kenyan activist becomes a victim of 48 Interview with Peter Cheruiyot, Program Officer, OPDP (Ogiek rendition’, Time, 10 March 2011, http://www.time.com/time/ Peoples’ Development Program), Nakuru, 20 July 2011. world/article/0,8599,2057966,00.html 49 Interview with Richard Yegon, Endorois Elders Council and 25 Designed to revive the economy of the state plundered former local councillor, Nakuru, 28 July 2011. during the Kenyatta and Moi years, Kibaki launched 50 Republic of Kenya, Kenya Constituency Development Funds ambitious economic policy programs upon his election to Act, 2005. power in 2003, the Economic Recovery Strategy for Wealth 51 Interview with Moses Laima, Kitale, 13 October 2011. and Employment Creation. Upon his contested re-election in 52 Anonymous Nubian woman, interviewed on 12 October 2008, Kibaki initiated a new and long term development 2011, Kibera. policy, Vision 2030. 53 Summary of Joseph Lemaiguran and Others on behalf of the 26 McVeigh, T., ‘Biofuels land grab in Kenya’s Tana Delta fuels Ilchamus community v. Electoral Commission of Kenya and talk of war’, The Guardian, 2 July 2011, at Attorney General of Kenya (judgment of 18 December 2006), http://www.guardian.co.uk/world/2011/jul/02/biofuels-land- Nairobi High Court Miscellaneous Civil Application no. 305, grab-kenya-delta 2004. 27 The mechanism designed to address impunity was the 54 Press Statement by Super Minorities’ Forum, 27 September establishment of the CIPEV, an independent quasi-judicial 2011 (on file with author). body, to investigate the causes of the violence and prescribe 55 Korir Sing’Oei, A. and Adam, H., ‘Covert racism – the Kibera solutions for securing justice for the victims of the violence. The clashes: an audit of political manipulation of citizenship in recommendations of this body have led to the referral of the Kenya and 100 years of Nubians’ landlessness’, unpublished Kenyan case to the International Criminal Court (ICC), where six manuscript, 2002, on file with author. senior officials of the Kenyan government are likely to stand 56 Ibid. trial as persons ‘bearing the greatest responsibility’ for the 57 Report of the Kenya Land Commission (Carter Commission violence. See, e.g., Korir Sing’Oei, A., ‘The ICC as arbiter in Report), September 1933, HM Stationery Office, 1934, Cmd. Kenya’s post-electoral violence’, Minnesota Journal of 4556, II5. International Law, vol. 9, 2010, http://minnjil.org/pdf/Singoei.pdf 58 African Committee of Experts on the Rights and Welfare of 28 The full set of the text of the National Accord and related the Child, Com. No. 002/2009, Nubian Community v. Kenya. documents is available at http://www.dialoguekenya.org/ 59 Article 17(1). Interview with Adam Hussein Adam, OSI Officer 29 Republic of Kenya, Truth, Justice and Reconciliation Act, in Charge of Citizenship Discrimination, August 2011. 2008, section 6 (p). 60 Government of the Republic of Kenya, Kenya Vision 2030: A 30 Republic of Kenya, National Cohesions and Integration Act, Globally Competitive and Prosperous Kenya, Nairobi, Ministry section 11. of Planning and National Development and the National 31 Musau, N., ‘Land main source of complaints, says TJRC’, Economic and Social Council, 2007. Nairobi Star, 27 June 2011, http://allafrica.com/stories/ 61 Kenya National Assembly, African Socialism and Its 201106272231.html Application to Planning in Kenya, Sessional Paper No. 10, 32 Interview with Yobo Rutin, CEMIRIDE Director, 1 October Nairobi, Government Printer, 1965. 2011, Nairobi. 62 Lamu Port Project Blog: http://www.zambezi.com/news/ 33 Leftie, P., ‘Shock of Kenya ruled by ethnicity’, The East article/lamu_port_project African, 6 April 2011, http://www.theeastafrican.co.ke/news/ 63 Ibid. -/2558/1140072/-/o3wqvtz/-/index.html 64 Gubelman, E., ‘Devastating new port proposal for the Lamu 34 Interview with Munini Mutuku, Senior Program Officer, NCIC, archipelago’, Mangrove Action Project, 9 February 2009, Nairobi, August 15,2011. http://mangroveactionproject.org/news/action- 35 Summary of Centre for Minority Rights Development (Kenya) alerts/devastating-new-port-proposal-for-the-lamu- and Minority Rights Group International on behalf of Endorois archipelago Welfare Council v. Kenya, African Commission 65 Oluoch, F., ‘Kenya: fishermen, ecosystem among the major Communication 276/2003. losers in proposed projects’, The East African, 27 July 2009, 36 Human Rights Council, Report of the Working Group on the http://www.theeastafrican.co.ke/magazine/-/434746/629670/ Universal Periodic Review, 50th Session, 17 June 2010, para. -/15mctsiz/-/index.html 101.114, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ 66 Interview with Professor Abdalla Bujra, Nairobi, 5 August G10/144/88/PDF/G1014488.pdf?OpenElement 2011. 37 Makoloo, op. cit., pp. 24–8. 67 Interview with Mohammed Warsame, Mombasa, 20 July 2011. 38 Interview with Sahra Ali, Nairobi, 12 October 2011. 68 Ogiek Memorandum to the Constitution of Kenya Review 39 Kibera focus group discussion (FGD). Commission, http://www.forestguardian.net/news/ 40 Interview with Patita Tingoi, Programme Officer Fahamu news-00-09-1.htm (Networks for Social Justice), Nairobi, 20 October 2011. 69 Convention concerning Indigenous and Tribal Peoples in 41 Samburu FGD in Nanyuki, 11 August 2011. Independent Countries (ILO No. 169), 72 ILO Ofﬁcial Bulletin 59, entered into force 5 September 1991.

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 29 70 Memorandum of the Sengwer of Kenya Presented to the 85 Republic of Kenya, Sessional Paper No. 2 of 2009 on Land Constitution of Kenya Review Commission (July 2002) Policy. available at http://www.ogiek.org/sitemap/memo-seng-1.htm 86 Kenya Constitution, 2010, Article 60(1)(f). 71 Memorandum to the Constitution of Kenya Review 87 Ibid., Article 65(2). The clamour by Maasai in Laikipia for non- Commission by the Pastoralists and Hunter Gatherers Ethnic extension of land leases in Laikipia held by non-citizens has Minorities Network, July 2002, http://www.ogiek.org/sitemap/ not yielded much result. See, Vasagar, J., ‘Masai seek return case-memorandum.htm. This memorandum was a synthesis of the ancestral lands they lost at gunpoint’, The Guardian, of views collected from Maasai, Samburu, Turkana, Ogiek, 26 July 2004, http://www.guardian.co.uk/world/2004/jul/26/ Sengwer, Terik, Orma, Wardei Somali, Borana, Rendille, kenya.jeevanvasagar Sanya and Ellmollo. 88 Kenya Constitution, op. cit., Article 62(2)(a). 72 Article 19(2). The South African Constitutional Court’s 89 Extended beyond the purview of section 4 of the Present interpretation of that country’s Constitution’s equality Government Lands Act guarantee has relied on a dignity-based approach, beginning 90 Jacob, L., ‘Classifying cultural rights’, in W. Kymlicka and W. with President of the Republic of South Africa v. Hugo 1997 Norman (eds) Citizenship in Culturally Diverse Societies: (4) SA 1 at 256. Issues, Contexts, Concepts, Oxford, Oxford University Press, 73 Article 20(1). 1997, p. 19. 74 In Communication 276/2003, Centre for Minority Rights 91 Ethnic-based decentralization, known in Kenya as Development (Kenya) and Minority Rights Group International Majimboism, was initially seen as a counterpoise to on behalf of Endorois Welfare Council v. Kenya, that was centralization, but this model has often been abused and before the African Commission on Human and Peoples’ was resisted in Kenya’s drive for a new Constitution. Rights, the Endorois community in its complaint alleged that 92 First Schedule. the High Court stated clearly it could not address the issue 93 Kenya Constitution, op. cit., Article 177(1)(c). of a community’s collective right to property and instead 94 Ibid., Article 197(2). referred to individuals. 95 Ibid., Article 216. 75 See, e.g., D.H. and Others v. the Czech Republic, Application 96 Ministry of Northern Kenya, Decentralization and Its Potential no. 5735/00, Eur. Ct HR (13 November 2007) para. 184; see Impact on Regional Inequality, Report presented at also European Union, Council Directive Implementing the Devolution conference by Ministry of Northern Kenya Principle of Equal Treatment Between Persons Irrespective of (September 2010, on file with author). Racial or Ethnic Origin, 2000/43, Article 2(2): 97 Ibid., p.135. 98 Interview with Dr Juma Ngeywa, 23 July 2011. ‘[I]ndirect discrimination shall be taken to occur where an 99 Interview with Yusuf Dogo, Director, Friends of Nomads apparently neutral provision, criterion or practice would put International, Isiolo, 15 October 2011. At the time of writing persons of a racial or ethnic origin at a particular this report, over 20 members of the Turkana had been killed disadvantage compared with other persons, unless that in ethnic conflict in Isiolo. See also Weru, J., ‘Residents urge provision, criterion or practice is objectively justiﬁed by a state to probe Isiolo clashes’, East African Standard, 30 legitimate aim and the means of achieving that aim are October 2011, http://www.standardmedia.co.ke/InsidePage appropriate and necessary.’ .php?id=2000045908&cid=4& 100 Interview with Chemwei Naibei, Mt Elgon, 7 October 2011. 76 Articles 27(6) and 27(7). 101 See, Nzioka, P., ‘Forgotten squatters cry for help’, Daily 77 High Court of Kenya in Nairobi, Petition No. 102 of 2011, Nation, 26 May 2011, http://www.nation.co.ke/News/ Federation of Women Lawyers and 5 others v. Attorney regional/Forgotten+squatters+cry+for+help+/-/ General and Others (judgment of Justices Mwera, Warsame 1070/1170220/-/item/1/-/dk7qdq/-/index.html and Mwilu delivered on 25 August 2011), p. 21. 102 See, Kenya Human Rights Commission, Gains and Gaps: A 78 Ibid., p. 42. Status Report on IDPs in Kenya, 2011, http://www.khrc.or.ke/ 79 High Court of Kenya in Mombasa, Petition No. 1 of 2011, .../17-gains-and-gaps-a-status-report-on-idps-in-kenya-20 Muslims for Human Rights and Others v. Attorney General 103 The non-implementation of the Endorois decision stands out and Others (ruling of Justice J.B. Ojwang, dated 18 February as a glaring instance of non-respect for a human rights treaty 2011, on file with author). to which Kenya is a party. 80 Ndanyi, M., ‘5,000 abandon school due to famine in 104 Korir Sing’Oei, A., ‘When not to use minority rights standards Turkana’, Nairobi Star, 21 May 2011, http://allafrica.com/ in this Constitution’, Daily Nation, 7 July 2011, stories/201105231540.html http://allafrica.com/stories/201107080445.html 81 Article 20(5). 105 See Government of Kenya, Interim Report of the Task Force 82 High Court of Kenya at Embu, Ibrahim Sanghor Osman (on on Devolved Government, June 2011, behalf of 1122 Evictees of Madina) v. Minister for State for http://www.ke.undp.org/index.php/resources/ Provincial Administration (Court order on file with author). government-reports See also, Okoth, D., ‘Groups join forces to stop state 106 Interview with Michael Tiampati, Director Pastoralists evictions’, East African Standard, 18 June 2011, Development Network, Nairobi, 10 August 2011. http://www.standardmedia.co.ke/InsidePage 107 Institute for Development Studies, ‘Notes from the University .php?id=2000037338&cid=4 of the Bush’, November 2010, Isiolo, p. 20, 83 In the High Court in Mombasa, Miscellaneous Civil http://www.pastoralists.org/media/homepage/Notes%20from Application No. 8 of 2011, Engineer Charo Wa Yaa and %20the%20UoB%202010.pdf Others v. Municipal Council of Mombasa and Others, at p. 18 108 Uganda Government, The Equal Opportunities Act, 2007. (ruling of Justice J.B. Ojwang on 13 May 2011, on file with 109 Three Twa Deputies in the National Assembly and three author). others in the Senate represent the greatest measure of 84 High Court of Kenya, Petition No. 65 of 2010, Satrose Ayuma political participation for the Twa. v. Kenya Railway and Attorney General (ruling of Justice 110 Burundi Electoral Code (2006), Article 104. Musinga, dated 17 February 2011, on file with author). 111 Section 185 of the Constitution.

30 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 112 Commission for Rights of Cultural, Religious and Linguistic 113 Roux, T., Land Restitution and Reconciliation in South Africa, Communities briefing, 1 September 2010, SAIFAC Occasional Paper, 2009, http://www.saifac.org.za/ http://www.pmg.org.za/report/20100901-commission-rights docs/res_papers/RPS%20No.19.pdf -cultural-religious-and-linguistic-communities-crl-c

KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 31 Getting involved

MRG relies on the generous support of institutions and MRG’s unique publications provide well-researched, individuals to further our work. All donations received accurate and impartial information on minority and contribute directly to our projects with minorities and indigenous peoples’ rights worldwide. We offer critical indigenous peoples. analysis and new perspectives on international issues. Our specialist training materials include essential guides One valuable way to support us is to subscribe to our for NGOs and others on international human rights report series. Subscribers receive regular MRG reports instruments, and on accessing international bodies. and our annual review. We also have over 100 titles which Many MRG publications have been translated into can be purchased from our publications catalogue and several languages. website. In addition, MRG publications are available to minority and indigenous peoples’ organizations through If you would like to know more about MRG, how to our library scheme. support us and how to work with us, please visit our website www.minorityrights.org, or contact our London ofﬁce.

32 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES working to secure the rights of minorities and indigenous peoples

Kenya at 50: unrealized rights of minorities and indigenous peoples

To mark Kenya’s 50th anniversary of self-rule, this report groups generally, this report shows that the prevailing reviews the current status of minority and indigenous experience of minorities in Kenya is increased vulnerability. groups in Kenya. Focusing on Kenya’s 2010 Constitution, this report pays particular attention to how legal and policy There is a danger that constitutional recognition may not changes over the last five years have addressed the social, translate into positive developments for minority groups in economic and political challenges confronting minorities. reality. This report describes the ongoing challenges facing minority and indigenous groups: lack of political The present state of minority and indigenous groups within participation, discrimination and weak protection of their Kenya’s dynamic context has been shaped by conflicting right to development. forces of regression and progress responding to the 2007 post-electoral violence, the new Constitution and the forthcoming 2012 elections. This report demonstrates both Directed at non-governmental organizations, policy actors the opportunities to be seized and constraints to be and the media, this report warns that failure to ensure overcome by minority groups if they are to realize the inclusion of minorities and address the anxieties of dream of inclusion. majorities, particularly in the context of county governments in the run-up to the 2012 elections and Although Kenya’s new Constitution contains numerous beyond, will lead to untold conflict, driving the reform positive provisions for minorities and other vulnerable agenda several years back.

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